The notorious Bournewood case in 1997, in
which a mentally incapacitated man was held in a psychiatric hospital without
any formal detention under the Mental Health Act, was one of the factors that
led to the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards.
But the MCA has never actually satisfactorily resolved the ethical and legal
issues surrounding the keeping of a complaint mentally incapacitated person in
hospital.

The case of GJ v. A Foundation Trust in 2009
provided some clear guidelines concerning when to use the MHA and when to use
the MCA, but the same Judge (Mr Justice Charles), in AM v SLAM, has now
produced new guidelines.

Mr Justice Charles recently considered
(well, in August 2013) the case of AM. AM was a 78 year old woman living with
her daughter. The local mental health services were concerned about her
wellbeing, and her daughter was preventing an assessment. An AMHP consequently
obtained a Sec.135(1) warrant, and AM was admitted to hospital under Sec.2 MHA.

AM remained under Sec.2 MHA while an application
was made for her daughter to be displaced as Nearest Relative. Two Tribunals
considered the case, and both upheld her continuing detention. There was a
consequent appeal against the second decision.

It was being argued on AM’s behalf that her
stay in hospital could be covered by Sec.5 of the Mental Capacity Act, and that
an authorisation under the Deprivation of Liberty Safeguards (DOLS) could be
issued if it was considered that there was a deprivation of liberty.

The Judge had previously found in GJ v. A
Foundation Trust that when there was a choice between the MCA and the MHA, then
the MHA had primacy. My own view as an AMHP was that this was appropriate, as
the MHA provided more legal safeguards, for instance, the right to appeal
against detention, and the right to automatic referrals to a Tribunal if
detention continued.

However, AM v SLAM has essentially
displaced this judgment, and goes into extensive detail on how to decide
between the MCA and the MHA in a range of different circumstances.

The judgment places all people who may be
being considered for detention under Sec.2 or Sec.3 MHA into four categories.
These are:

“i) the MCA cannot apply in respect of any
matter which the relevant person has the capacity to decide for himself or
herself, ii) a person with the capacity to do so can
consent to a deprivation of his or her liberty, and iii) a person with the relevant capacity
who is refusing to be admitted to hospital or is demanding to leave hospital
(so a category (iii) person) can only be detained there pursuant to the MHA.”

It is the view of the Judge that the entire
process of deciding between the MCA or the MHA hinges on S.131 MHA – informal
admission to hospital. The Judge states: “The application of s.131 MHA and ss.5
and 6 of the MCA to the assessment and treatment of a compliant incapacitated
patient work together.” Here, the crucial factor is whether or not the patient
has capacity.

The judgment goes on to outline the three
stages in the decision making process:

1. Is there a need to admit the patient?
And if so, does the patient have the capacity to consent to informal admission
under S.131 MHA?

2. Can the hospital rely on the MCA alone
to assess and treat the patient?3.If
the MCA could be used, “How should the existence of a choice between reliance
on the MHA and the MCA and its DOLS be taken into account?”

The Judge considers S.16A MCA and paragraph 17 of Schedule A1 to
the MCA, relating to a patient who is considered to be “ineligible to be
deprived of his liberty”. Essentially the judgment is
saying that the MCA/DOLS can only apply to categories ii) & iv), so that in
category i) one would rely on S.131 MHA, and for category iii) one would
consider detention under S.2 or S.3.

I have attempted to visualise some of this
process in the form of a flow chart:

Having reached a point in the assessment
process when it can be considered that MCA/DOLS may apply, that is not yet the
end. It is still necessary to consider whether, even so, it is more appropriate
to use the powers of the MHA.

AM’s representatives argued that in her
case MCA/DOLS should be used, but the Judge made it clear that “the correct position is that there may be
cases in which a compliant incapacitated person may properly and lawfully be
admitted, assessed or treated and detained under Part II MHA when he or she
could be assessed or treated pursuant to s. 131 MHA and ss 5 and 6 MCA and be
the subject of the DOLS.”

He points out that
“examples of circumstances when this will be the case are found in paragraph
4.21 of the MHA Code of Practice and paragraph 4.48 of the Code of Practice to
Supplement the Mental Capacity Act Code of Practice.”

To save you the
onerous task of looking up these references, here they are.

Para 4.21 of the MHA CoP gives the following examples of when the MCA is
not appropriate:

“• the patient’s lack of capacity to
consent is fluctuating or temporary and the patient is not expected to consent
when they regain capacity. This may be particularly relevant to patients having
acute psychotic, manic or depressive episodes;

• a degree of restraint needs to be used
which is justified by the risk to other people but which is not permissible
under the MCA because, exceptionally, it cannot be said to be proportionate to
the risk to the patient personally; and

• there is some other specific identifiable
risk that the person might not receive the treatment they need if the MCA is
relied on and that either the person or others might potentially suffer harm as
a result.”

Para 4.48 of the DOLS CoP basically repeats the MHA CoP guidance:

“Even where a person does not object and a
deprivation of liberty authorisation is possible, it should not be assumed that
such an authorisation is invariably the correct course. There may be other factors
that suggest that the Mental Health Act 1983 should be used (for example, where
it is thought likely that the person will recover relevant capacity and will
then refuse to consent to treatment, or where it is important for the hospital
managers to have a formal power to retake a person who goes absent without
leave).”

The Judge suggests that there will be a
need to take “a fact sensitive
approach, having regard to all the relevant circumstances, to the determination
of the “necessity test” and thus in the search for and identification of the
least restrictive way of best achieving the proposed assessment or treatment”.
This will need to include “the practical / actual availability of the MCA
regime”.

Is that all clear?

Mills &
Reeve’s helpful analysis of this case may be able to elucidate. They suggest:

“When applying the “necessity test”, the
decision maker is looking for the alternative that best achieves the objective
of assessment or treatment in the least restrictive way, whether this is under
ss2 or 3 MHA. This requires consideration of the MCA/DOLS against the MHA detention
to ensure that deprivation of liberty is lawful and governed by a statutory
regime.

The decision maker needs to consider the
theoretical and practical availability of the MCA/DOLS authorisation, as well
as the overall impact of each statutory regime in best achieving the desired
outcome.”

Overall, I’m not sure whether this Judgment
helps or hinders an AMHP, hospital or other decision maker, in reaching a
decision about whether to use the MCA or the MHA in these circumstances. It
still seems to boil down to a matter of individual professional judgment.

9 comments:

This was an amazingly badly written judgment that seems to sacrifice clarity for legal pyrotechnics. I'm not a lawyer but have heard more seasoned commentators expressing impatience about recent Court of Protection judgements in this area as evidence that the judges are over-reaching and are producing complex case law more or less for the hell of it all. This has made things less clear, but I'm not sure if too much has changed because this judgement doesn't alter the legal definition of what treatment for a mental disorder might be. This is often quibbled about by professionals but isn't actually now in much doubt because its now clearly defined in the 2007 Act. I tend to hang on to the fact that this judgment does not alter the primacy of the MHA for the treatment of a mental disorder and to work backwards from that. If someone is objecting to treatment and the view of professionals is that treatment for that mental disorder must be given, then the MHA should be used. As I understand the case, this just adds to the list of circumstances where other factors might be held to be predominant over the need for treatment for a mental disorder. Please correct me if I'm wrong (as I said, execrable prose and a poorly structured judgment) but I understand that in this case, P was not at a later stage of her admission objecting to her treatment but that a relative was and what the judgement seems to say is that in these circumstances, DoLS might be sufficient to retain the patient in hospital (when a relative might seek to remove them) and that the main provisions of the Mental Capacity Act would be held to apply for the giving of treatment for a mental disorder. The patient herself was 'incapacitated and compliant' so would normally in any other circumstance have been an informal patient. This case seems to me therefore to resemble the BB case, an earlier judgment where DoLS powers were held to have been appropriate to keep a vulnerable person with a learning disability in hospital against family objections where there was a suspicion of abusive or ineffective care. So nothwithstanding Mr Justice Charles's wilful obscurity and various provocative sallies, not much actually changes. Heard Richard Jones speak about the judgment and say that the choice or legal regimes was more or less now entirely down to professional judgement, but I think his continuing hostility to DoLS as a legislative enactment has caused him to overstate and as far as I'm concerned, seriously damages his credentials as a commentator you can entirely trust on this area. Heard another commentator state more carefully that he considers the shift is from the 'primacy' of the MHA to the careful consideration of 'eligibility' (this is the dreadful jargon term for the bit of the DoLS assessment where an assessor formally and explicitly considers which legal regime should apply). As noted, considering which regime might apply is structured as a part of the DoLS assessment schema, I think what we're being told is that AMHPs should consider themselves under a similar obligation to stop and think and that the answer might not always be pink forms. In some areas most of the BIAs are AMHPs anyway so this shouldn't present too many difficulties, in other areas, a deliberate (and rather daft) decision was made that BIA and AMHP responsibilities should be separate. I think those areas might now be in a little more difficulty.

Mills and Reeves comment is particularly useful when thinking about how decisions can be challenged. I for one ( and not an AMHP) would like there to actually be a more transparent up front debate about why AMHP's are actually choosing to detain the compliant incapacitated person in the first place.

There is often very little evidence that the reason for formal detention is because they may'change their mind' if admitted as an informal patient. The AMHP's in this area of London detain people this way as there is no longer any access to informal admission.

If someone consents to informal admission - inc after MHA assessment - then Trust Bed Management Policy is to refer to a crisis house or crisis team instead. With wait times for assessment of up to 2 weeks and no guarantee that the extremely unwell person will actually be admitted as if the risk deemed to high then crisis house will refuse.

So AMHP knows this, now has seen distressed unwell person but knows that if they ask for/agree to informal admission then no bed and AMHP bears responsibility ( potential and legal liability ).

Local NHS/LA politics doesn't allow this to be acknowledged so AMHP always takes the detention route on the basis above.

Maybe we should be addressing this issue as the possible driver to many of these decisions around MCA ( removal from the home by the police as advised by AMHP is another one when they 'can't' come out) before trying to work out if this case had helped or not.

Because quite frankly if you are going to detain because there is no other way of getting admission the system will be worked to do that.

I work in a location were services are certainly under pressure but probably not under the pressure I read about in the big cities where by the sounds of things, rates of formal detention are being pushed up as a means of prioritising access to beds at all. I mainly work with client groups (dementia, neurological impairments, learning disability) where, in my humble opinion, the Mental Health Act is woefully and inappropriate underused and clinician paternalism rules unchallenged, not OK. I don't think this is untypical for these groups (but please tell me different if you find differently where you work). I suppose the context of some of these judgments about the 'interface' of the MHA and MCA is therefore that the norm is a widescale and systematic failure to ratify detention with reference to any legal regime at all. Complex judgments don't help as if anything, they're likely to deter clinician tempted to do the right thing from inviting trouble into their lives. There is no effective means of challenging de facto detentions.

Richard Jones here. I agree with your analysis. In particular I was pleased to read that you agree with the stance that I take and which is criticised by your first anonymous contributor i.e. the choice os the statutory route for the detention of an incapaitated compliant patient is essentially a matter of professional judgment.

'Anonymous 1' here: I agree that professional knowledge and skills are important in exercising judgment here but think that the word 'choice', used in some commentaries, is the wrong terminology. It implies an entirely free choice based on preference or discretion. This isn't the case and isn't the thrust of the written judgment. (Though it's so verbose and badly expressed that anyone at all would be forgiven for missing this). Charles J is still requiring professionals to be sensitive to the particular circumstances of a case in discriminating which of the two potentially available pieces of legislation apply. I think 'determination' would be more accurate terminology than 'choice'. If he didn't mean that, why did he tick the original tribunal off for not considering DoLS in the first place and refer the case to 'a differently constituted tribunal' with such comprehensive advice rather than just saying 'Oh well, do as you please, it's all a matter of discretion and interpretive flair after all'?

I think all that the AM vs SLAM judgment does is add another 'but for ...' to the roster begun by the GJ case.

Now, it might be arguable that some of the distinctions are now becoming so fine and the case law so complex that it might as well be down to an arbitrary free choice by professionals for all that outside observers can tell, but that's an argument with having a Common Law legal system at all. However, I think the failure is one in skills of explanation. I am irritated by the way the judgment is phrased, and am annoyed it sets so many hares running and fails to catch them all. Other judges are more skilled at expressing themselves so that professionals can catch the drift: Parker J for instance seems to take seriously the job of setting things clearly enough for jobbing social workers to understand.

By the way, I always thought that the famous rant from the earlier GJ judgment, was aimed directly at you and was therefore rather a backhanded compliment: ‘… it is not lawful for medical practitioners [using the MHA 1983], decision makers under the MCA, treating doctors, social workers or anyone else to proceed on the basis that they can pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) that they consider render one regime preferable to the other in the circumstances of the given case.’

Can't see where this statement is rescinded in the AM vs SLAM judgment and I continue to cite it in training for BIAs and AMHPs.

I wouldn't gush so much if we met face to face, Prof Jones, but the fact of our difference on this point notwithstanding, we remain impressed with your work as an interpreter of this body of law!

Given the above "The judgment places all people who may be being considered for detention under Sec.2 or Sec.3 MHA into four categories. These are:“i) The compliant capacitated. ii) The compliant incapacitated. iii) The non-compliant capacitated. iv) The non-compliant incapacitated.”

How is it then that the following is correct?" "The Judge considers S.16A MCA and paragraph 17 of Schedule A1 to the MCA, relating to a patient who is considered to be “ineligible to be deprived of his liberty”. Essentially the judgment is saying that the MCA/DOLS can only apply to categories ii) & iv), so that in category i) one would rely on S.131 MHA, and for category iii) one would consider detention under S.2 or S.3."

Is the statement "...MCA/DOLS can only apply to categories ii) & iv)..." a typo? If someone is objecting how can MCA/DoLS apply? What am I missing?

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About Me

I am an Approved Mental Health Professional working in a semi-rural area in England. I have practised under 3 Mental Health Acts, since as long ago as 1981, even before the 1983 Mental Health Act. Which makes me pretty ancient now.
This blog is designed to illuminate and explain the functions and dlimemmas of an AMHP within the Mental Health Act. It is intended to be of help to professionals and service users alike. I hope that it is both informative and entertaining.
I am also a freelance trainer, and a part time tutor on an AMHP course. I've appeared at conferences all over England and Wales. If you'd like to book me for your conference or training event just send me an email.